Alternative Dispute Resolution – a Conflict Resolution Smorgasbord
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Unless you are a lawyer or judge, you probably do not think much about alternative dispute resolution (commonly abbreviated as “ADR”). Most people have experienced or heard about ADR, but many people misunderstand, misuse, or entirely miss creative dispute resolution opportunities that ADR systems provide. We want to help people understand ADR systems in this and other articles so that they can enjoy ADR benefits without suffering problems caused by ADR misuse and abuse (for basic mediation information, see the article entitled Why Mediation Resolves Conflicts Better Than Litigation).
ADR has existed for thousands of years alongside traditional courtroom justice. For instance, the apostle Paul criticized members of the first century A.D. church in Corinth for suing each other in court instead of resolving disputes within the church congregation (the Bible, 1 Corinthians 6:1-6). That letter describes one of the key benefits of ADR systems, which is that opponents in a dispute have more shared control over the dispute outcome by submitting to discrete ADR than by submitting their dispute to public scrutiny in a court.
Indiana, Illinois, and many other states recognize most ADR system components. Rule 1.3 of the Indiana Rules of Alternative Dispute Resolution provides this ADR systems description:
Rule 1.3. Alternative Dispute Resolution Methods Described
(A) Mediation. This is a process in which a neutral third person, called a mediator, acts to encourage and to assist in the resolution of a dispute between two (2) or more parties. This is an informal and nonadversarial process. The objective is to help the disputing parties reach a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision-making authority rests with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities.
(B) Arbitration. This is a process in which a neutral third person or a panel, called an arbitrator or an arbitration panel, considers the facts and arguments which are presented by the parties and renders a decision. The decision may be binding or nonbinding as provided in these rules.
(C) Mini-Trials. A mini-trial is a settlement process in which each side presents a highly abbreviated summary of its case to senior officials who are authorized to settle the case. A neutral advisor may preside over the proceeding and give advisory opinions or rulings if invited to do so. Following the presentation, the officials seek a negotiated settlement of the dispute.
(D) Summary Jury Trials. This is an abbreviated trial with a jury in which the litigants present their evidence in an expedited fashion. The litigants and the jury are guided by a neutral who acts as a presiding official who sits as if a judge. After an advisory verdict from the jury, the presiding official may assist the litigants in a negotiated settlement of their controversy.
(E) Private Judges. This is a process in which litigants employ a private judge, who is a former judge, to resolve a pending lawsuit. The parties are responsible for all expenses involved in these matters, and they may agree upon their allocation.
ADR systems usually settle disputes faster and less expensively than normal courtroom litigation, but untrained people can create serious problems by using sophisticated ADR systems (such as arbitration) without understanding them. Whether you are writing a rental agreement for a house or bylaws for a social club, consider hiring a lawyer/mediator before adding mediation, arbitration, or other ADR language to the agreement. Your investment in ADR quality can make the difference between enjoying the best and worst ADR experiences.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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